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New York City, like other major cities around the world, has acknowledged the problem of climate change, undertaken a comprehensive risk assessment, created a suite of adaptation and mitigation planning initiatives, and begun to implement policies to both decrease the city’s contribution to the problem and make the city less vulnerable to the effects of climate change. In an article published in the Columbia Journal of Environmental Law, I provide a detailed analysis of the city’s climate change resilience initiatives and conclude that many of the city’s initiatives provide a model for other coastal communities, but the city's initiatives nevertheless fall short of what is likely required to sufficiently moderate harm from dangerous interference with the climate system.

The city’s robust suite of initiatives put it ahead of the pack as compared to most other U.S. municipalities, especially with respect to comprehensive reform of zoning and building codes, integrated mitigation and adaptation planning, transparent climate change-related data analysis initiatives, and commitment to reduce GHG emissions 80% by 2050 from 2005 levels and progress toward that goal. However, the city also faces a host of wicked policy binds, ineffective regional structures, a lack of support at the federal level, and numerous conditions that constrain its ability to remain resilient. In light of this, the “toughness” theme that runs throughout the city’s plans risks undermining its robust data analysis and reporting initiatives by instilling in New Yorkers a false sense of security with respect to both the scope of the problem and their local government’s ability to protect them from it. The city faces an equally wicked policy bind with respect to waterfront development. Given the foreseeable risks of increasingly intensive and frequent coastal storms, flooding and storm surges, coastal municipalities must carefully evaluate their waterfront development policies to assure consistency with future climate risks and adopt regulations that curtail or eliminate waterfront development in high-risk areas, encourage or require relocation away from vulnerable areas, and take maximum advantage of opportunities to develop natural flood-mitigation infrastructure.

See Sink or Swim: In Search of a Model for Coastal City Climate Change Resilience, 40 Columbia J. Envt’l L. 433 (2015), available here.

Land Use Prof colleagues -- please share the following information about an online self-paced course in adaptive planning and resilience as broadly as possible. It's especially relevant for professionals who are engaged in planning and would benefit from skills to make their planning processes more adaptive and resilience-oriented. Students, professors, and other professionals are welcome too. Thanks for your interest and help! All best wishes, Tony Arnold

I’m writing to let you know about an online self-paced professional development course in adaptive planning and resilience. This course is aimed at any professional who engages in planning under conditions of uncertainty, complexity, or unstable conditions, whether in the public sector, private sector, local community, or multi-stakeholder partnerships.

The course is ideal for professionals in sectors such as urban planning, community development water supply, water quality, disasters/hazards, environmental protection, land management, forestry, natural resources management, ecosystem restoration, climate change, public infrastructure, housing, sustainability, community resilience, energy, and many others. I hope that you and the employees and/or members of your organization will consider enrolling in this course.

The 12-hour course is offered by the University of Louisville for a cost of $150 and is taught by Professor Tony Arnold, a national expert in adaptive planning and resilience, and a team of professionals engaged in various aspects of adaptive planning. The online lectures are asynchronous, and the course is self-paced; this offering will last until November 22.

More information is provided below and at the registration web page: http://louisville.edu/law/flex-courses/adaptive-planning. This offering of the course begins October 12 but registration will be accepted through November 15 due to the self-pacing of the course. We are seeking AICP CM credits for the course in partnership with the Kentucky Chapter of the American Planning Association, but cannot make any representations or promises until our application is reviewed.

Please share this blog post or information with anyone who might be interested. Please contact me at tony.arnold@louisville.edu, if you have any questions.

Adaptive Planning and Resilience

Online and self-paced

Oct. 12 – Nov. 22, 2015

Adaptive Planning and Resilience is a professional development course in which professionals will develop the knowledge and skills to design and implement planning processes that will enable their governance systems, organizations, and/or communities to adapt to changing conditions and sudden shocks or disturbances.

Adaptive planning is more flexible and continuous than conventional planning processes, yet involves a greater amount of goal and strategy development than adaptive management methods. It helps communities, organizations, and governance systems to develop resilience and adaptive capacity: the capacity to resist disturbances, bounce back from disasters, and transform themselves under changing and uncertain conditions. Adaptive planning is needed most when systems or communities are vulnerable to surprise catastrophes, unprecedented conditions, or complex and difficult-to-resolve policy choices.

The course will cover the elements of adaptive planning and resilient systems, the legal issues in adaptive planning, how to design and implement adaptive planning processes, and case studies (including guest speakers) from various communities and organizations that are employing adaptive planning methods. Enrollees will have the opportunity to design or redesign an adaptive planning process for their own professional situation and get feedback from course instructors.

The six-week course totals about 12 hours broken into 30-minute segments. It is conducted online and is asynchronous. Cost is $150.

About Professor Tony Arnold

Professor Craig Anthony (Tony) Arnold is the Boehl Chair in Property and Land Use at the University of Louisville, where he teaches in both the Brandeis School of Law and the Department of Urban and Public Affairs and directs the interdisciplinary Center for Land Use and Environmental Responsibility. Professor Arnold is an internationally renowned and highly-cited scholar who studies how governance systems and institutions – including planning, law, policy, and resource management – can adapt to changing conditions and disturbances in order to improve social-ecological resilience. He has won numerous teaching awards, including the 2013 Trustee’s Award, the highest award for a faculty member at the University of Louisville.

Professor Arnold has clerked for a federal appellate judge on the 10th Circuit and practiced law in Texas, including serving as a city attorney and representing water districts. He served as Chairman of the Planning Commission of Anaheim, California, and on numerous government task forces and nonprofit boards. He had a land use planning internship with the Boston Redevelopment Authority, did rural poverty work in Kansas, and worked for two members of Congress. Professor Arnold received his Bachelor of Arts, with Highest Distinction, Phi Beta Kappa, in 1987 from the University of Kansas. He received his Doctor of Jurisprudence, with Distinction, in 1990 from Stanford University, where he co-founded the Stanford Law & Policy Review and was a Graduate Student Fellow in the Stanford Center for Conflict and Negotiation. He has affiliations with interdisciplinary research centers at six major universities nationwide and is a part of an interdisciplinary collaboration of scholars studying adaptive governance and resilience.

Professor Arnold will be joined in co-teaching the course by a team of his former students who are

professionals knowledgeable in adaptive planning. They include:

Brian O’Neill, an aquatic ecologist and environmental planner in Chicago

Heather Kenny, a local-government and land-use lawyer in California and adjunct professor at Lincoln Law School of Sacramento

Sherry Fuller, a business manager at the Irvine Ranch Conservancy in Orange County, California, and former community redevelopment project manager

Andrew Black, who is Associate Dean of Career Planning and Applied Learning at Eckerd College in St. Petersburg, Florida, and a former field representative for two U.S. Senators in New Mexico

Andrea Pompei Lacy, AICP, who directs the Center for Hazards Research and Policy Development at the University of Louisville

Jennifer-Grace Ewa, a Postdoctoral Fellow in Inequality and the Provision of Open Space at the University of Denver

Alexandra Chase, a recent graduate of the Brandeis School of Law who has worked on watershed and urban resilience issues with the Center for Land Use and Environmental Responsibility and now lives in St. Petersburg, Florida.

In March 2015, FEMA issued a State Mitigation Plan Review Guide, following notice and comment. Under the new guidance, state Hazard Mitigation Plans (HMPs) must consider the probability of future hazards, taking into consideration changing future conditions including changing climate and weather conditions. And, on March 6, 2016, this new guidance will become the agency’s official policy on the natural hazard mitigation planning requirements of Title 44 of the Code of Federal Regulations (CFR) Part 201, and FEMA’s interpretation of federal regulations for state hazard mitigation plans.

A change in the requirements for state HMPs can mean real money to state governments because these plans are one of the conditions of eligibility for certain federal assistance—for example, Public Assistance Categories C-G and Hazard Mitigation Assistance mitigation project grants. Although states are currently required to adopt HMPs in order to qualify for certain disaster funds, under past FEMA guidelines state governments could assess their potential risks based on historic data. In other words, their HMPs could ignore risks from the foreseeable effects of climate change, including rising sea levels, higher storm surges, and more frequent and intense storms, droughts and heat waves. Expressly recognizing the significance of climate change to risk mitigation planning, the new guidance explains that future climate-change related risks must be considered because

“Past occurrences are important to a factual basis of hazard risk; however, the challenges posed by climate change, such as more intense storms, frequent heavy precipitation, heat waves, drought, extreme flooding, and higher sea levels, could significantly alter the types and magnitudes of hazards impacting states in the future.” (State Mitigation Plan Review Guide § 3.2.)

The new FEMA guidance also recognizes the significance of land use planning to risk reduction. The guidance suggests that to effectively increase community resilience the HMP must be more than an emergency management plan and the planning process must include the full range of effected sectors, including land use, economic development, housing, health and social services, and infrastructure.

In an apparent shot across the bow to state climate change deniers, the new guidance also finds that 44 CFR §201.4(c)(6), which requires state HMPs to “be formally adopted by the State,” means that the plan must be adopted by the highest elected official in the state or his or her designee. The guidance states that

“[Plan adoption by the state’s highest elected official or designee] demonstrates commitment to the mitigation strategy and may serve as a means to communicate priorities to entities within the state agencies regarding vulnerability and mitigation measures . . . [and] may increase awareness of and support from the state agencies with mitigation capabilities and responsibilities, not just the state agency responsible for the mitigation planning program.” (State Mitigation Plan Review Guide § 3.7.)

A survey of state HMPs from the 2010-11 period by Columbia Law School’s Sabin Center for Climate Change Law, found that

Even though it appears 21 states already include at least an accurate, albeit sometimes limited, discussion of climate change, the new FEMA guidance requires significantly more—which raises the question of whether states are equipped to address future hazards, including climate-related hazards, as robustly as the new guidance requires. For example, are states equipped to quantify climate-change related risks at the state level? For most, the answer is probably “no.” The Guide gives a nod to this problem, suggesting that “states are expected to look across the whole community of partners (for example, public, private, academic, non-governmental, etc.) to identify the most relevant data and select the most appropriate methodologies to assess risks and vulnerability.” (State Mitigation Plan Review Guide § 3.2.) However, notwithstanding potential support from community partners, the complexity of scaling global climate data to a regional scale and identifying related risks within a relatively short time frame means that most states will be hard pressed to quantify future hazard probabilities by the time their next HMP update is due.

New York may be among the few states that are equipped to respond in time. New York’s Department of State and Department of Environmental Conservation began developing statewide climate-related projections earlier this year in response to the newly enacted New York Community Risk and Resiliency Act, which among other things directs the state agencies to prepare climate projections and model municipal laws taking into consideration sea-level rise and other climate-related events.

Given the unmet need for state and local resources to adequately assess, plan and ultimately implement hazard mitigation strategies that account for climate change, as well as the political backlash from the new requirement, is FEMA’s new guidance ill conceived? My answer is “no.” Many resources exist to help states in their hazard mitigation planning process, and I suspect FEMA will accept plans that consider climate change risks even if the supporting climate data are not scaled to the state level, as long as the state risk assessment takes into consideration FEMA's updated flood maps and other available climate-related risk projections.

And, more significantly, the new guidance is a necessary step in closing a troubling gap between climate-related vulnerabilities and preparedness that exists in the United States. Global temperatures are increasing and the rate of increase is accelerating, with corresponding increases in sea levels, acidification of oceans, and losses of flood-mitigating wetlands. Many communities are already experiencing climate change related hazards, including eroding shores, more massive storm surges, more severe storms, salt water intrusion, loss of land, heat waves, wildfires, and droughts. State HMPs based solely on historic data that don’t take into account these changing conditions fail to address the full gambit and magnitude of hazards that are likely to impact the states—with resulting loss of lives, public health and welfare impacts, property damage, and potentially avoidable expenditures of federal disaster funds. Thus, although some lawmakers are charging FEMA with politicizing the hazard mitigation planning process and access to disaster funds, state administrations that are unwilling to fully consider and plan for foreseeable hazards are themselves jeopardizing public health and welfare in order to hold onto a political position that no longer holds water.

Among other projects that focus on the intersection of climate resiliency and smart growth, LISGRP is working with Touro Law Center to place law students with the City of Long Beach to support sustainable rebuilding. Consistent with priorities identified in the City's recently completed NY Rising Community Reconstruction Plan, the City is implementing recommendations from a Global Green Technical Assistance project (funded through a grant from EPA’s Building Blocks for Sustainable Communities program) and a New York University study on green infrastructure and storm water management.

Thus, according EPA Greening the Apple bloggers Joe Siegel and Rabi Kieber, LISGRP and its collaborators are "turning lemons into lemonade" in the wake of the devestation of Super Storm Sandy.

...Long Island Smart Growth Resiliency Partnership has turned lemons into lemonade by incorporating not only climate change resilience but smart growth and equitable development into long term planning on Long Island. The groundbreaking work of the Partnership will no doubt serve as a model for other recovery efforts in Region 2 and beyond.

In today's press release, the Governor described the Act as "a comprehensive package of actions that help strengthen and reimagine our infrastructure with the next storm in mind." The legislation implements some of the recommendations made by Governor Cuomo’s NYS 2100 Commission, established following Superstorm Sandy. The Governor also proclaimed the week of Sept. 22-28, 2014 "Climate Week," finding among other things that

"New York State will not allow the national paralysis over climate change to stop us from pursuing the necessary path for the future."

The Community Risk and Resiliency Act (A06558/ S06617-B) requires New York State agencies to consider future physical climate risks caused by storm surges, sea level rise or flooding in certain permitting, funding and regulatory decisions. The standards would apply to smart growth assessments; siting of wastewater treatment plants and hazardous waste transportation, storage and disposal facilities; design and construction regulations for petroleum and chemical bulk storage facilities and oil and gas drilling permits; and properties listed in the state’s Open Space Plan, as well as other projects. The Act also requires the NY Department of Environmental Conservation (DEC) to adopt sea level rise projections by January 1, 2016, and update the projections every five years.

But, of particular note to land use scholars and practitioners, the Act also:

Requires the NY DEC and NY Department of State to prepare model local laws to help communities incorporate measures related to physical climate risks into local laws, and provide guidance on the implementation of the Act, including the use of resiliency measures that utilize natural resources and natural processes to reduce risk.

Provides funding, subject to appropriation, to municipalities for local waterfront revitalization planning projects that mitigate future climate risks. Projects may include preparation of new local laws, plans, and studies, and construction projects.

Provides funding on a competitive basis, subject to appropriation, to municipalities or not-for-profits toward the cost of coastal rehabilitation projects that consider future climate risks.

Allows the Commissioner of the Office of Parks, Recreation and Historic Preservation to enter into maintenance and operation agreements for open space land conservation projects in urban areas or metropolitan park projects with municipalities, not-for-profits, and unincorporated associations, if the project demonstrates consideration of climate-change risks.

"Scientists have confirmed a sea level rise of approximately 13 inches since 1900 along New York's coast, and have also measured a significant increase in the proportion of total precipitation that arrives in heavy rainfall events. These climate changes, coupled with land-use planning, zoning and investment that allow and sometimes encourage development in at-risk areas, have resulted in more people, businesses and public infrastructure existing in vulnerable areas."

The legislation was approved in both houses by wide margins, and had support from a diverse group of stakeholders including: The Nature Conservancy in New York, The New York League of Conservation Voters, The Business Council of New York State, the General Contractors Association, The Reinsurance Association of America, The American Institute of Architects New York State, The Municipal Arts Society of New York, Audubon New York, Natural Resources Defense Council, Environmental Advocates of New York, and The Adirondack Council.

Click here to read the full text of the Community Risk and Resiliency Act. Click here for the bill history and sponsors.

UN Climate Summit: Tuesday, Sept. 23 (Invitation only)By invitation from UN Secretary-General Ban Ki-moon, more than 120 heads of state as well as other world leaders, including EPA Administrator Gina McCarthy, have committed to attend the summit, with a goal of galvanizing action to reduce emissions, strengthen climate resilience, and mobilize political will for a meaningful legal agreement in 2015.

Rising Seas Summit: Sept. 24-26 Location: Crowne Plaza Times Square, New York, NYEPA Regional Administrator Judith Enck will be speaking at a lunch plenary session with other environmental leaders on the first day of this inaugural event. Online registration is available until Sept. 22 only.

Today, 20 years after approval of the original Comprehensive Conservation and Management Plan, the Long Island Sound Study released a draft updated CCMP. The Long Island Sound Study, co-sponsored by the EPA and the states of Connecticut and New York, is a partnership of federal, state, and local agencies, universities, businesses, and environmental and community groups. According to an EPA press release, the draft Plan emphasizes the principles of sustainability, climate change resiliency, environmental justice and ecosystem-based management.

Recognizing the significance of land use to wetland and watershed protection, the draft Plan highlights the need for

Integration of transportation planning, conservation of energy and water, resiliency to climate change, and pollution control policies;

Smart growth and low impact development to minimize the environmental impacts of new and existing development;

Meeting numerous ecosystem-level targets such as increasing riparian buffers and open spaces; and,

Fully involving and responding to the needs of underserved communities.

The draft Plan describes the benefits of these investments in economic terms, explaining that they will provide substantial returns for the regional economy.

"The financial value of goods and services provided to the region's economy by Long Island Sound Basin's natural systems ranges between $17 billion and $36.6 billion annually. Treated as a capital asset, the value of these natural systems, calculated using a standard 4% discount rate with a lifespan of 100 years, is $690 billion to $1.3 trillion (Kocian et.al., 2014). Unlike built systems that depreciate, however, natural assets often accumulate value over time, particularly if they are protected and restored. In addition, an estimated 191,000 direct and indirect jobs in the region result from that the healthy function of these natural systems, and the associated stewardship work."

With respect to implementation and land use, the draft Plan identifies as "Implementation Actions"

Providing technical guidance for incorporating Low Impact Development/Green Infrastructure into development and redevelopment projects and through zoning and planning changes;

Reducing the amount of impervious cover that discharges directly into waterbodies;

Remediating brownfields;

Tracking implementation and effectiveness of approved watershed plans by local municipalities;

Promoting establishment and protection of riparian corridors and wetland buffers at the municipal level through development of local ordinances and promoting permanent land protection; and,

Increasing land protection efforts by municipalities and land protection organizations that permanently protect wetlands and riparian areas and buffers.

Notably, however, these Implementation Actions are not identified as "Priority Implementation Actions." Of course, prioritizing of implementation actions is where the rubber hits the road, so to speak. Given that EPA and the LISS are currently accepting comments on the draft updated Plan, those of us concerned with NE region watershed management should take a close look at the draft Plan, with particular attention to the Implementation Actions and their designation -- or lack thereof -- as "Priority." A copy of the draft Comprehensive Conservation and Management Plan is available at the Long Island Sound Study website at http://longislandsoundstudy.net/Planupdate.

Public meetings on the draft plan will be held

September 16, 1:00 to 3:00pm, in Westbury, NY at the Yes Community Center

September 16, 6:00 to 8:00pm, in the Bronx, NY at Rocking The Boat

September 17, 2:30 to 4:30pm, in New Haven, CT at Southern Connecticut State University

Public comments on the plan will be accepted via email and post until Saturday, November 8, 2014. Emailed comments should be sent to contact@watervisionllc.com. Mailed comments should be sent to:

EPA describes this week's settlement between the United States and Costco as indicative of a more aggressive policy by the federal government to use the Clean Air Act to prosecute the largest GHG emitters, including grocery stores -- a continuing shift in federal priorities that will be of interest to state and local government law practitioners and scholars, as well as those of us who focus on the intersection of local land use law and climate change.

In a settlement announced on Wednesday by the DOJ and EPA, Costco agreed to cut its emissions of GHGs from refrigeration equipment at more than half of its stores nationwide. Costco will also pay $335,000 in penalties for CAA violations and improve refrigerant management at 274 stores at an estimated cost of $2 million over the next three years.

Sam Hirsch, acting assistant attorney general for the Justice Department's Environment and Natural Resources Division, responded to the settlement, saying

"Industry needs to lead the way in abandoning harmful chemicals in favor of using and developing greener, environmentally friendly alternatives to protect our health and our climate."

EPA and DOJ announced that the measures required by the settlement are expected to reduce Costco’s GHG emissions by the equivalent of approximately 30,000 metric tons of carbon dioxide per year. The GHG at issue in the settlement is actually hydrochlorofluorocarbon (from leaks of the refrigerant R-22), which is a more potent GHG than carbon dioxide.

Some may question whether the settlement requires enough of Costco, the nation's second largest retailer, given annual revenues of over $100 billion (in 2013, as reported by EPA).

The proposed settlement is subject to a 30-day public comment period and final court approval.

Perpetual conservation easements (CEs) are popular for restricting development and land use, but their fixed terms create challenges for adaptation to climate change. The increasing pace of environmental and social change demands adaptive conservation instruments. To examine the adaptive potential of CEs, we surveyed 269 CEs and interviewed 73 conservation organization employees. While only 2% of CEs mentioned climate change, the majority of employees were concerned about climate change impacts. CEs share the fixed-boundary limits typical of protected areas with additional adaptation constraints due to permanent, partial property rights. CEs often have multiple, potentially conflicting purposes that protect against termination but complicate decisions about principled, conservation-oriented adaptation. Monitoring is critical for shaping adaptive responses, but only 35% of CEs allowed organizations to conduct ecological monitoring. Additionally, CEs provided few requirements or incentives for active stewardship of private lands. We found four primary options for changing land use restrictions: CE amendment, management plan revisions, approval of changes through discretionary consent, and updating laws or policies codified in the CE. Conservation organizations, funders, and the IRS should promote processes for principled adaptation in CE terms, provide more active stewardship of CE lands, and consider alternatives to the CE tool.

Climate change poses a challenge for maintaining the stable entitlements that are basic to property law. Yet property rights can also serve as aids to climate adaptation. This essay, which was initially delivered as the Wolf Family Lecture on the American Law at the University of Florida, explores both aspects of the property/climate-change relationship. The first part of the article discusses takings issues that may arise in connection with sea level rise. The second part of the article discusses the constructive role that transferrable development rights and the public trust doctrine could play in climate adaptation, including their role in limiting takings claims.

I just finished reading a new article by Jess Phelps in the latest issue of Environmental Law. In Preserving Perpetuity?: Exploring the Challenges of Perpetual Preservation in an Ever-Changing World, Phelps tackles some issues closely related to questions I research: what do we do about perpetual permanent restrictions in a world of constant change? Phelps takes a narrower tack than my articles though, looking just at historic preservation easements. If you think that perpetual land conservation sound challenging, try fooling yourself into thinking that buildings are going to last forever. Well, okay we all know that perpetual restrictions have their usefulness even when we know that a perpetual building is not possible. What I like about Phelps' piece is that he cites me he takes a practical approach, providing specific plans for how to respond when natural disasters damage or destroy structures protected by historic preservation easements. It is a helpful read for land trusts or drafters of conservation easements thinking proactively about climate change impacts.

Sarah Schindler (Maine) has posted Banning Lawns, forthcoming in the George Washington Law Review (2014). The abstract:

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.

Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that contributes to a loss of biodiversity and typically requires vast amounts of water, pesticides, and gas-powered mowing.

In this Article, I consider municipal authority to ban or substantially limit pre-existing lawns and mandate their replacement with native plantings or productive fruit- or vegetable-bearing plants. Although this proposal would no doubt prove politically contentious, local governments — especially those in drought-prone areas — might be forced to consider such a mandate in the future. Furthering this practical reality, I address the legitimate zoning, police power, and nuisance rationales for the passage of lawn bans, as well as the likely challenges they would face. I also consider more nuanced regulatory approaches that a municipality could use to limit lawns and their attendant environmental harms, including norm change, market-based mechanisms such as progressive block pricing for water, and incentivizing the removal of lawns.

Prof. Schindler has been working on this project and presented it at ALPS previously-- it will serve as a foundational article on the debate that is going to happen (whether or not you knew it) on the future of the American Lawn!

Michael Burger (Roger Williams) has posted The Last, Last Frontier, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Appproach (Keith Hirokawa ed., Cambridge University Press) 2013. The abstract:

Increased temperatures associated with global climate change are opening new Arctic territory to oil and gas exploration and clearing passage for new maritime shipping routes. These changes are provoking a diverse range of legal responses in the international arena, where nations are staking new territorial claims and seeking to revise understandings of the Law of the Sea, and in the domestic environmental and maritime laws of Arctic nations. While these events provide evidence of an international competition over natural resources, they also provide a case study in how environmental law and litigation construct and reify dominant ideas of nature. This book chapter examines the particular ways in which the storylines and tropes that constitute the "imaginary Arctic" factor into litigation surrounding Shell Oil's attempts to drill for oil and gas in the Beaufort and Chukchi seas. The Shell litigation is exemplary because it pits a number of well-established storylines against each other: the Arctic as classical frontier, the Arctic as spiritualized frontier, the Arctic as neutral space, the Arctic as homeland, and the Arctic as part of the developing world.

My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.

Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!

And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.

Conference Summary

The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.

We are just starting day two of a conference here at Buffalo on climate change in the artic. We have participants from many fields (coming in person and electronically). This conference is also our first try at broadcasting our conferences via webinar. This enables folks to participate from all over the globe (not just by passively listening but also offering real-time questions and comments). It also seems a great way to do CLE.

I am including the information on the conference below in case any of you have some free time today and want to join the webinar. Also, the papers steming from the conference will be available in a SUNY Press book on the issue coming out next year.

Conference Summary:

The Big Thaw: Policy, Governance and Climate Change in the
Circumpolar North will bring together experts in science, law,
sociology, and other fields to explore the pressing issue of climate
change in the arctic. Conference participants will deliberate on
international, national, and local perceptions of environmental,
cultural, social and economic change in the arctic, interweaving the
contexts of policy, legal, local and scientific models. Through its core
focus on time, space, change and movement, this conference seeks common
measures to the time scales of lived human experience in the arctic and
sub-arctic region in a warming world.

The circumpolar North is a critical observatory for changing relations
between human societies and the environment, and the policies that
should accompany such change. The arctic and the sub-arctic are at the
center of global debates on post- Cold War partnerships and issues of
post-colonial governance, strategy and regional sovereignty. For
political and other reasons, the circumpolar North has only recently
reemerged as a "region," revealing past connections and current common
problems, and pointing to future challenges. Experts will gather and
share thoughts on how we arrived at the current situation(s), where
exactly things stand, and where to go from here.

Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.

My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.

I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.

As part of a radio show on the recently declared Anthropocene (we're already 8000 years into it!), Big Picture Science featured an interview with Ed Glaeser (Harvard-Economics) about how city living moderates rather than aggravates global warming. The Glaeser interview begins 22 minutes into the show. Among other things, I learned that the entire population of the Earth could be housed on 1/10th-acre lots within the land area that makes up Texas. (I call the intersection down the block from Festa's house!)

In arguing for urbanization as a vital greening strategy (or at least an alternative to hunter-gatherer existence), Glaeser draws upon his book, Triumph of the CIty. Matt blogged about David Reiss's review of that book here.

The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.

This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

Cost and Registration

The symposium is free and open to the public.Registration is suggested by Friday, February 15.

To register, please contact:Journal of Environmental and Sustainability LawUniversity of Missouri School of Law12E Hulston HallColumbia, MO 65211umclawjesl@missouri.edu

Tony Arnold (Louisville) sends word that he has co-authored a chapter with Lance Gunderson (Emory--Environmental Studies) called Adaptive Law, forthcoming in the book Resilience and Law, Craig R. Allen & Ahjond S. Garmestani, eds., Columbia University Press, 2013. The abstract:

This book chapter proposes a bold sweeping set of characteristics of "adaptive law": features of the legal system that promote the resilience and adaptive capacity of both social systems and ecosystems. Law, particularly U.S. law, has been characterized as ill-suited to management of natural resources and the environment for resilience and sustainability. The maladaptive features of U.S. law include narrow systemic goals, mononcentric, unimodal, and fragmented structure, inflexible methods, and rational, linear, legal-centralist processes. This book chapter proposes four fundamental features of an adaptive legal system: 1) multiplicty of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist proceses with feedback loops and accountability. It then discusses these four features in the context of several socio-ecological issues and identifies needs for future study and development of adaptive law, particularly in light of panarchy theory about how complex, adaptive, interconnected systems change over time.

As many land use lawyers already know, Prof. Arnold is one of the leading scholars in establishing the emerging area of adaptive law; this collaboration with Prof. Gunderson looks to be a very helpful starting point for comparing ecosystems and social systems with respect to adaptation to changing circumstances.

Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom. As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote. Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy. Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change. But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation. As Adler describes:

Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .

Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .

A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.

Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.

The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.

Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels. I look forward to the symposium isse in the Case Western Law Review.

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Editors

Craig Anthony Arnold

Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Ph.D. Faculty in Urban and Public Affairs
Chair of the Center for Land Use and Environmental Responsibility,
University of Louisville